In one of my previous posts, I said the following about how the courts ought to treat the religious liberty claim: “The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: “The mandate interferes with religious liberty…and it doesn’t serve a compelling state interest because it harms women and children, so it should be struck down.” That’s a no-go. The church can’t put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law.”

This statement generated a bit of discussion: My colleague Richard Garnett pointed out, quite rightly, that the Court doesn’t simply adopt the government’s assertion of the importance of its interest hook, line, and sinker. It evaluates the government’s interest—sometimes it agrees with the government’s assessment, sometimes it doesn’t. My purpose in writing this sentence was simply to point out that the court doesn’t uncritically adopt the religious liberty claimant’s characterization of the government’s interest, either. To take a crude example, the Supreme Court is not likely to say “Okay, the religious pacifist before us says that 1) killing is a deep violation of his conscientious religious beliefs and 2) all warfare is bad for the U.S., because waging war is always wrong—no compelling interest on the part of the government.” That would be, in my terms, for the religious pacifist to put both thumbs on the scales.

So how should a court to go about evaluating the religious liberty claim, on the one hand, and the governmental claim, on the other? Many religious liberty litigators say that the court has to accept the claimant’s account of a) the nature and b) the seriousness of their violation of religious liberty—no judicial evaluation required or allowed. I am not sure this is the right approach, at least with respect to RFRA, which says that the government may not “substantially burden a person’s exercise of religion.” It’s tricky, though. On the one hand, I don’t want to read the word entirely out of the statute. Nor do I think that it’s necessarily a good thing for religions to imply that they can’t give an account of whether a burden is substantial or non-substantial—it suggests that religiously infused moral beliefs aren’t susceptible to being given rational accounts. Nor do I think that this “pure deference” approach actually accounts for the case law. (I suspect for instance, that one of the reasons that Catholic conscientious objectors in war time had such a hard time is that the courts assessed, tacitly, their stands against the general non-pacifist position of Catholic teaching and raised an eyebrow about the religious claims). On the other hand, there are very good Establishment Clause reasons for a court not to get into the weeds of religious teaching.

What about the government interest side of things? Well, the government has to present its case: In the case of the contraceptive mandate, this would include 1) the studies about preventive health care services in general; 2) the studies that show that women are more likely to be disadvantaged than men by the lack of first-dollar preventive care coverage; and 3) the Institute of Medicine study about preventive services for women. (Remember, that the government is claiming that first-dollar coverage is necessary, so that arguments about contraception being easily available at Walmart for a cheap price don’t quite engage the question on the table.)

So let’s put a hypothetical question on the table. Say that we’ve a Catholic Supreme Court justice: Let’s call her Associate Justice Antonia Clarentia Ligouri. Let’s assume here that she takes the bishops’ claim that the mandate is a substantial interference with religious liberty at face value. How should she go about evaluating the weight of the government’s interest in providing first-dollar contraceptive coverage, on the other side of the scale? Does it matter whether she is convinced by the arguments that contraception is intrinsically evil, or accepts its evilness on the authority of the Church (a privileged interpreter of natural law)? Does it matter whether she’s convinced by the account of the way contraception will harm the common good in Humanae Vitae, or accepts it as an obedient daughter of the Church. How should she go about evaluating the IoM study, and the material on preventive care? Would the health risks to children who result from unplanned pregnancies matter?

Should she simply substitute the Church’s judgment about the social benefits of contraception for that of the IoM? What weight, if any, does she give to the fact that the court has held contraception to be constitutionally protected as part of the right to privacy (Griswold v. Connecticut, Eisenstadt v. Baird)? What weight, if any, does she give to the fact that the EEOC has long held that failure to cover contraception as part of a prescription program counts as discrimination against women? What weight, if any, does she give the fact that the vast majority of religious traditions in this country do not consider contraception always wrong?